Kip thinks that the likely outcome of Rumsfeld v. FAIR (upholding the constitutionality of the Solomon Amendment) is at odds with Boy Scouts v. Dale (holding that the Boy Scouts could refuse to allow gay scout masters). I’ll admit, up front, that I am no lawyer and have no law training at all, but I don’t see the conflict.
The Boy Scout case said that private institutions could discriminate against others when the discrimination was consistent with the institution’s values. (At least that is my understanding, like I said, I’m no lawyer)
Quick Aside: To me, that sounds correct. Private bodies should be allowed to voluntarily enter into contracts or voluntarily not enter into contracts. Government should not be allowed to coercively force people into entering arrangements that they don’t want to be in. Whether the plaintiff was gay or left-handed shouldn’t really matter.
The Rumsfeld case is a bit different though. Congress is saying that if colleges want a large wad of cash, it will come with a caveat, in order to get the cash, you have to let the military recruit on your campus. Congress didn’t create a law that said the colleges couldn’t exclude the military. They didn’t create a law that challenges the colleges independence in entering contracts. They simply forced the colleges to decide the value of their morality. Is excluding the military worth $100 million?
In order to create a similar situation under the Boy Scout case you would need to change the facts as follows. A gay man tells the Boy Scouts that he will give them $10K, but in order to get it they have to let him be a scout master. The Boy Scouts say “No Way” but you have to give us the money anyway since you offered.
I think that it is quite apparent that the Supreme Court would rule, in fact, that Mr. Gay Man does not need to pay the Boy Scouts $10K, but they are free to exclude him if they are willing to forgo the cash.
But then again, I’m not a lawyer so I could be wrong.